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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Black, R (on the application of) v Secretary of State for Justice [2008] EWCA Civ 359 (15 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/359.html Cite as: [2008] 3 WLR 845, [2008] 4 All ER 151, [2008] EWCA Civ 359, [2008] HRLR 30

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand. London. WC2A 2LL
		15/04/2008

Lord Justice Latham:

1. This is another appeal in the developing jurisprudence on the application of Article 5 of the European Convention on Human Rights to decisions relating to the release of serving prisoners. The present appeal arises in relation to the position of a relatively small and diminishing category of long term prisoners sentenced under the provisions of the Criminal Justice Act 1991, (the 1991 Act), which provides pursuant to section 35(l)as follows:

"After a long-term prisoner has served one-half of his sentence, The Secretary of State may, if recommended to do so by the Board, release him on licence."

2. These provisions do not apply to prisoners sentenced under the Criminal Justice Act 2003, nor do they apply to long term prisoners sentenced under the 1991 Act to terms of less than 15 years. In the case of these the Secretary of State has, in effect, transferred to the Parole Board his functions relating to release, pursuant to the provisions of s.50 of the 1991 Act.
3. The appellant was sentenced on the 27 July 1995 to a total of 20 years imprisonment for offences of false imprisonment, kidnapping, conspiracy to kidnap and robbery. On the 8 January 1996, he was sentenced to 4 years imprisonment for escaping from custody and assault with intent to cause grievous bodily harm and was sentenced to 4 years imprisonment to be served consecutively to the 20 year sentence. He has a long history of offending including offences committed in Denmark, Switzerland and Portugal. On the 2 May 2006, the Parole Board recommended his release on licence. On the 29 August 2006, the respondent declined to exercise his power to release the appellant under s.35. He did not accept the Parole Board's recommendations. He concluded that the risk of re-offending had not been sufficiently reduced, particularly bearing in mind the seriousness of the offences of which he had been convicted, and his previous convictions.
4. The appellant in his application for judicial review, asked the court to quash the respondent's decision or to declare that it is unlawful for the respondent to reject the advice of the Parole Board and a declaration that he is entitled to immediate release in accordance with the recommendation made by the Parole Board. He made this application essentially on three grounds. The first was that the respondent's decision breached his rights under Article 5(4) of ECHR; the second was that the respondent was bound to accept the recommendation of the Parole Board; and the third, in the alternative, was that the respondent was only entitled to depart from a recommendation by the Parole Board if there was fresh material which entitled him to do so. Kenneth Parker QC, sitting as a Deputy High Court Judge, dismissed the application, rejecting each of the three grounds. He gave leave to appeal, however, in relation to the first ground which is, accordingly, the only remaining issue.
5. Article 5(4) ECHR provides as follows:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

6. Convention jurisprudence has, for the purposes of this Article, made a clear distinction between decisions depriving a person of his liberty made by an administrative body on the one hand and the court on the other. This is most clearly stated in the judgment of the European Court of Human Rights in De Wilde, Oms Versyp v Belgium (No 1) (1971) 1 EHRR 373, para 76:

"At first sight, the wording of Article 5(4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty... Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that Article 5(4) obliges the contracting states to make available to the person detained the right to recourse to a court; there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case, the supervision required by Article 5 (4) is incorporated in the decision, for example, where a sentence of imprisonment is pronounced after "conviction by a competent court" (Article 5(1) (a) of the Convention)."

7. We have to apply this principle to a situation in which the responsibility for determining the length of a sentence is shared between the judge and the respondent. The courts here have determined that the maximum period that the appellant can serve is 24 years. The statutory early release provisions mean that he must serve at least 12 years of those 24. That much has effectively been determined by the courts. The precise period that he will serve, is, however, determined by the provisions of s. 35 of the 1991 Act that is by a decision of the respondent that is the executive, to release him if recommended to do so by the Parole Board. The simple argument on behalf of the appellant is that in relation to that decision, he is entirely dependent upon a decision by the executive, which is no different in kind from the determination made by the respondent's predecessors in both discretionary and mandatory life sentence cases which have been held by the court to be incompatible with a prisoners Article 5 (4) rights: see Regina (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837. Contra, the respondent submits that a proper understanding of the House of Lords decisions in Regina (Giles) v Parole Board [2004] 1 AC 1 and Regina (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, makes it clear that the lawfulness of the continued detention of a fixed term prisoner is always determined by the sentence imposed by the court, and is therefore justified by Article 5 (l)(a).
8. To evaluate this argument it is obviously necessary to look at those latter two authorities and authorities which have followed them. Dealing first with Giles, it is important to be clear about the argument that was being presented in that case. It involved a prisoner who had been sentenced to a total of 7 years imprisonment and was entitled in accordance with the provisions of s.35 of the 1991 Act, as applied to long term prisoners serving less than a total of 15 years, to be released on the recommendation of the Parole Board. Under the early release provisions, he could only be considered for release after he had served one half of that sentence, namely 3½ years. But the sentence was a longer than commensurate sentence imposed pursuant to the provision of s 2 (2) (b) of the 1991 Act. The judge was empowered to impose such a sentence if he concluded that it was necessary to protect the public from serious harm from the claimant. The issue before the court was whether Article 5 (4) applied. The appellant's case was that the sentence was in two parts. Lord Bingham set out the appellant's argument at paragraph 4 of his speech, as follows:

"The underlying rationale of this argument is clear. The sentence passed on a discretionary life sentence prisoner has two components, the first is punitive, the second protective. The only justification for continued detention of a prisoner who has served the punitive part of his sentence is the need to protect the public. But a prisoner's danger to the public, however evident at the time of sentence, may diminish or disappear. Thus his danger to the public, and the justification for continuation, should be the subject of periodic review (in which the prisoner should have the right to participate) to ensure that the prisoner is not detained on the ground of his danger to the public when he is no longer such a danger. A similar regime, it is argued, should apply to those sentenced under s 2 (2) (b) or 80 (2) (b): once the commensurate term has been served, the only ground for continued detention is public protection; but by the end of the commensurate term the prisoner may no longer be a danger to the public; therefore his continued detention should be the subject of review, with his participation, to ensure that he is no longer detained on the ground of his danger to the public when he is no longer such a danger."

9. In rejecting that argument, Lord Bingham said this paragraph 10, page 21 A:

"In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence. Since the first offence involved what the sentencing judge described as "a savage attack" and the appellant had threatened further violence against his first victim, the term imposed does not appear to be in any way excessive. The sentence left nothing to be executive, since the Parole Board, whose duty it is to consider release at the halfway stage of the sentence, is accepted to be a judicial body. Again, May LJ put the point succinctly in his judgment, ante p 14 G-H, para 19:

(b) Although the sentence is longer than it otherwise would have been because the sentencing judge is of the opinion that it is necessary to protect the public from serious harm from the offender, (i) the length of the sentence is, and is intended to be determined by the judge at the time of sentence; (ii) it is not intended to be reviewed, other than on appeal; and (iii) in particular, it is not intended to confer on the executive the responsibility for determining when the public interest permits the prisoners release... "

"I conclude that the sentence passed on the appellant falls squarely within in Article 5 (1) of the convention and did not attract the operation of Article 5 (4). On the review of his case by the Parole Board he was entitled to the same rights as any other long-term prisoner serving a determinate sentence, but no other or greater rights. In considering his release at the halfway stage, the Board was bound to apply the same criteria to him as to any other long-term prisoner serving a determinate sentence. The suggested analogy between prisoners sentenced under s 2 (2) (b) or 80(2) (b) and discretionary life sentence prisoners is in my opinion false."

10. Lord Hope in a concurring speech set out in some detail the Strasbourg jurisprudence. In paragraph 32 he stated that the distinction between discretionary life sentences and determinate sentences was the fact that the former conferred on the Secretary of State the responsibility of determining when the public interest permitted the prisoner's release. That, he said, did not apply in relation to determinate sentences. That is certainly the case where the determinate sentence is less than 15 years as in Giles case. Further it is to be noted that in paragraph 52, he makes the point specifically that the appellant had no right under Article 5(4) to have his detention for the minimum period fixed by that sentence reviewed judicially. It is not entirely clear whether by that he was referring to the period before which early release would not be considered, or some other length. Nonetheless it makes the point that what was being considered by their Lordships was the argument on behalf of the appellant that release should be considered before the halfway point, calculated, in some way, by reference to a notional commensurate term. In my view, the ratio of Giles is confined to longer than commensurate sentences of less than 15 years, where it is the Parole Board that has the responsibility for determining the prisoners' release dates.
11. We were referred to Regina (West) v Parole Board and Regina (Smith) v Parole Board (2) [2005] 1 WLR 350. These cases involved administrative recall of prisoners on licence. They do not therefore raise, strictly, the issues which we are concerned. But it is interesting to note that whilst the power to determine early release was described as Article 5 (1) compliant, as being part of the sentence, nonetheless The House of Lords considered that the procedure adopted for recall had to be Article 5(4) compliant. Once again these were cases in which the Parole Board was the decision maker in relation to revocation of the licence, also the question was not whether appropriate judicial oversight was provided, but merely whether the procedure adopted by the Parole Board was Article 5 (4) compliant.
12. The case most heavily relied upon by the respondent is Regina (Clift) v The Secretary of State for the Home Department [2007] 1 AC 484. The appellant, Clift, was serving 18 years imprisonment for attempted murder and causing grievous bodily harm. He was accordingly in the same position as the present appellant. It appears as though the case was presented to the court on the basis that Article 5(4) did not have any direct application to his release, but that those serving 15 years or more were subject to discrimination for the purposes of Article 14 of the ECHR. Mr Owen QC, who appears for the appellant before us, and appeared for the appellants in Clift, states that the general assumption was Giles had effectively concluded that Article 5(4) had no relevance to determinate sentences. From what I have said above, it is clear that Giles is not an authority for such a sweeping proposition. The consequence of the way the case was presented was that the decision in Clift was based solely on an analysis of the scope of Article 14. Their Lordships concluded that where a member state established a scheme for early release of prisoners, any- provisions for the right to seek early release fell within the ambit of Article 5 so that differential treatment was capable of being discrimination for the purpose of Article 14. However, so far as Clift was concerned (and, equally, the present appellant) that did not assist his claim, because the discrimination was not on grounds which are relevant for Article 14. However Lord Bingham had trenchant words in relation to the differential treatment of those serving 15 years or over:

"The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. Anomalies are commonplace but by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by an individual prisoner, in the application of publicly promulgated criteria, was a task with no political content or one to which the Secretary of State could not (and did not claim to) bring any superior expertise."

13. The respondent's argument accordingly must be sub silencio. But the fact that Article 5 (4) was not argued, does not, in my view, make Clift authority for the proposition that it has no relevance in cases such as the appellant's.
14. Since Clift the Court of Appeal has had occasion to consider Article 5(4) again in Regina (Johnson) v The Secretary of State for the Home Department and Another [2007] 1 WLR 1990. In that case the appellant was a long term prisoner serving 7 years imprisonment. The complaint was that there had been a breach of the obligation under Article 5 (4) of the ECHR in that the Parole Board had unreasonably delayed consideration of his eligibility for parole. Waller LJ in his judgment at paragraph 29 concluded that a delay in determining an application for release gives rise to arbitrariness which is the mischief to which Article 5 (4) is aimed. He concluded, accordingly, that Article 5 (4) required the lawfulness of his detention to be determined "speedily" and that there had been a breach of that entitlement. Buxton LJ and Lloyd LJ agreed.
15. The inescapable logic of Johnson is that a prisoner serving a determinate sentence is entitled to have the lawfulness of his detention determined, not merely speedily, but by a court. On the assumption which has been made so far, subject to litigation that has not yet to be completed, the Parole Board meets the criteria for a sufficiently independent body to be Article 5 (4) compliant. That must apply to all determinate sentence prisoners. But whatever may be the position of the Parole Board section 35 of the 1991 Act, as it applies to those sentenced to 15 years or more, does not comply with the requirements of Article 5 (4) as it leaves the decision to the respondent. In other words, unlike Giles, the sentence does confer on the executive responsibility for determining when the public interest permits the prisoner's release.
16. For completeness I refer to the judgment that I gave in Regina (O'Connell) v Parole Board and Another [2007] EWHC 2591 (Admin). In that case, I held perhaps boldly in the light of Giles that Article 5 (4) applied to any situation where a decision had to be taken as when to release a prisoner under the early release provisions relating to determinate sentences. The true question was whether the Parole Board was an independent body satisfying the requirements of Article 5(4) and if so whether its procedures were themselves Article 5 (4) compliant.
17. In the light of all these authorities, I have come to the conclusion that s. 35 of the 1991 Act, as applied to those serving 15 years or more under the 1991 Act, provides for a procedure that does not comply with the requirements of Article 5 (4). It leaves the decision as to release in the hands of the executive, and is therefore capable of being applied arbitrarily which is the mischief at which Article 5 (4) of the ECHR is directed. Whilst the appeal must be dismissed, because the procedures in the present case complied with domestic law, I would grant a declaration of incompatibility under s. 4 of the Human Rights Act 1998 in relation to s. 35. The appropriate notice has been given to the relevant minister, who has indicated that he does not wish to make any separate representations to this court.

Lord Justice Moore-Bick: I agree

Lord Justice May: I also agree